Nanogram marijuana law tested with Routt County juries

Steamboat Springs  Editor's note: The story has been corrected to reflect that jurors in both trials indicated they had either been under the influence of marijuana at some time in their lives or had been in the presence of someone they believed had ingested marijuana.

In the past month, two Routt County juries have been asked to consider nanogram levels to decided if defendants were too high to drive.

In both cases, the defendants have been exonerated of driving under the influence. The attorneys who represented the defendants say a new marijuana DUI law lacks teeth, and it will continue to be interesting to see how juries respond to blood test results showing how many nanograms of THC a defendant had in his or her system.

“Law enforcement has a tough job, given these tools,” said Larry Combs, a Steamboat Springs attorney who tried one of the cases.

Steamboat attorney Adam Mayo represented the other defendant. The attorneys think the two cases were the first times the nanogram law has been presented to jurors in Routt County.

The state’s marijuana nanogram law that went into effect in May 2013 states: “If at such time the driver's blood contained five nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood, as shown by analysis of the defendant's blood, such fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs.”

Critics of the law have said that unlike the DUI alcohol blood test, the nanogram test is not a good way to measure a person’s ability to drive.

At both Routt County trials, the selected jurors indicated they had either been under the influence of marijuana at some time in their lives or had been in the presence of someone they believed had ingested marijuana. Both cases involved traffic stops by troopers with the Colorado State Patrol.

Mayo handled the first trial March 31.

According to court records, his 24-year-old client, a male from Denver, was arrested in August. Mayo said the college student was driving back from the hot springs on Routt County Road 36 and was pulled over for going five miles over the speed limit. Mayo said the man admitted to having consumed marijuana and did well on the roadside tests that are done by law enforcement to help determine if someone is impaired.

The man consented to a blood test, and the results showed 5.5 nanograms.

The jury found him not guilty of DUI and guilty of speeding.

In Combs’ case, a 22-year-old man who had been living in Steamboat was stopped by a trooper in October on Rabbit Ears Pass because of a cracked windshield. Like the other case, the man admitted to having smoked marijuana. He also did roadside tests and consented to a blood test, which showed 13 nanograms of THC, Combs said. The jury last week found the man not guilty on the DUI and driving with obstructed vision charge.

In both cases, the attorneys argued that there were no signs the drivers were impaired. The attorneys also drove home a point to jurors that the law, as it applies to marijuana, states they could only make a “permissible inference that the defendant was under the influence.”

Combs and Mayo explained the law is much more clear when it comes to alcohol and the 0.08 limit. The law states: “It is a misdemeanor for any person to drive a motor vehicle or vehicle when the person's BAC is 0.08 or more at the time of driving or within two hours after driving.”

The law is known as DUI per se.

There is no such specific wording for marijuana, the attorneys said.

“The 0.08 is pretty much written in stone,” Combs said. “It’s hard to beat the number.”

Mayo agreed.

“I’ve never won a trial when my client’s blood alcohol was above 0.08,” Mayo said.

Mayo said he would not be surprised if lawmakers eventually made the marijuana nanogram law more absolute to mirror the per se law for alcohol. Until then, he thinks juries will continue to look at the overall evidence in the cases and not focus on just the blood test and nanogram levels.

“It’s an inexact science, and there was some concern that this line we draw in the sand was going to be arbitrary,” Mayo said.

Routt County District Attorney Brett Barkey said that as law enforcement leaders warned during the debates on the passage of Amendment 64, legalization of marijuana has led to an increase in cases of driving while under the influence of marijuana.

"Among the challenges to enforcement is that the measurements for intoxication by marijuana are not as well understood by the public as they are for alcohol," Barkey wrote in an email. "Blood alcohol levels have been discussed widely for decades while many have never heard of 'nanogram' levels that are used to measure marijuana consumption. Similarly, indicia of drug intoxication, including marijuana, can be more subtle and require specialized training to investigate whereas the stereotype of a stumbling drunk has a long and broadly understood cultural history.

"Correcting this deficit will require substantial public education about the specific indicators and dangers of driving while stoned."

With the annual 4/20 marijuana celebration Sunday, state officials sent out a joint press release Thursday urging people to be safe this weekend.

“Similar to other major events, law enforcement will be out in large numbers ensuring that the public is complying with our new laws,” Chief of the Colorado State Patrol Col. Scott Hernandez stated in the release. “For example, Colorado has nearly 215 law enforcement officers highly trained in the detection of impairment by drugs, including cannabis. And their main goal is to keep impaired drivers off our roads.”

The press release also mentions the marijuana nanogram law.

“But unlike alcohol, it’s uncertain how much a person can consume and still be under the legal limit, which is why it’s best to stay off the road when or after consuming,” the release states.